Judge: Upinder S. Kalra, Case: BC710979, Date: 2023-03-01 Tentative Ruling

Case Number: BC710979    Hearing Date: March 1, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   March 1, 2023                                    

CASE NAME:           Cheryl Chae Castillo v. Bernie Casey, et al.

CASE NO.:                BC710979

MOTION FOR LEAVE TO INTERVENE

MOVING PARTY: Plaintiffs-in-Intervention Aaron and Chelsea Wangugi

RESPONDING PARTY(S): None as of February 24, 2023.

REQUESTED RELIEF:

1.      An order granting leave to intervene as to Aaron and Chelsea Wangugi

TENTATIVE RULING:

1.      Motion for Leave to Intervene is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On June 21, 2018, Plaintiff Cheryl Chae Castillo (“Plaintiff”) filed a complaint.

On February 4, 2022, a Notice of Entry of Amended Judgment was filed.

The current Motion for Leave to Intervene was filed on December 7, 2022. A Notice of Non-Opposition was filed on February 22, 2023.

LEGAL STANDARD:

CCP section 387(d) provides the following: 

(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:  

(A) A provision of law confers an unconditional right to intervene. 

(B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties. 

(2) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both. 

(Code Civ. Proc., § 387(d).) 

To establish a direct and immediate interest in the litigation for purposes of permissive intervention, a non-party seeking intervention must show that he or she stands to gain or lose by direct operation of the judgment, even if no specific interest in the property or transaction at issue exists.¿ (Simpson Redwood Co. v. State of California¿(1987) 196 Cal.App.3d 1192, 1201.)¿ “Whether the intervener’s interest is sufficiently direct must be decided on the facts of each case¿. . . .¿And section 387 should be liberally construed in favor of intervention.”¿ (Id.¿at 1200.)¿ “In order that a party may be permitted to intervene it is not necessary that his interest in the action be such that he will inevitably be affected by the judgment.¿ It is enough that there be a substantial probability that his interests will also be so affected.¿ ‘The purposes of intervention are to protect the interests of those who may be affected by the judgment¿. . . .’”¿ (Timberidge¿Enterprises, Inc. v. City of Santa Rosa¿(1978) 86 Cal.App.3d 873, 881-882 (citations and emphasis omitted).) 

REQUEST FOR JUDICIAL NOTICE:

Plaintiffs-in-Intervention request that the Court take judicial notice of the following documents:

1.       Notice of Pendency of Action (Lis Pendens) recorded on June 27, 2018, as instrument number 20180642731, in Los Angeles County’s Official Records.

2.       Notice of Withdrawal of Lis Pendens recorded on May 25, 2021, as instrument number 20210836191, in Los Angeles County’s Official Records.

3.       Grant Deed recorded on May 25, 2021, as instrument number 20210836192, in Los Angeles County’s Official Records.

4.       Notice of Pendency of Action (Lis Pendens) recorded on May 12, 2021, as instrument number 20210763172, in Los Angeles County’s Official Records.

5.       Judgment entered on July 27, 2021, in the instant case of Castillo v. Casey, et al., (Case No. BC710979 – Los Angeles Superior Court).

6.       Amended Judgment entered on January 10, 2022, in the instant case of Castillo v. Casey, et al., (Case No. BC710979 – Los Angeles Superior Court).

The Court may take judicial notice of the existence of the records, but not the truth of matters asserted in such records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565). As a result, although the court may take judicial notice that the documents exists, the Court may not take judicial notice of the truth of the facts in the documents.

            Additionally, Evidence Code only allows the Court to take judicial notice of certain types of documents. The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) The Evidence Code does not allow the Court to take judicial notice of discovery responses or parts of cases, such as depositions.

            The Request for Judicial Notice is GRANTED, as to all documents.

ANALYSIS:

Plaintiffs in Intervention Aaron Wangugi and Chelsea Wangugi move to intervene in this action as the real parties in interest to the record property.

Factual Background:

Plaintiff Castillo filed the original complaint for personal injuries against deceased defendant Casey. During the probate action after Casey’s death, Plaintiff Castillo recorded a Notice of Pendency of Action (Lis Pendens.)  Plaintiff Castillo settled with the Casey Estate, and as a part of the settlement, recorded a Withdrawal of the Notice of Pendency Action to the First Lis Pendens.

Intervenors purchased the Subject Property from the success trustee of the Bernie Casey Living Trust. However, despite the initial withdrawal of the First List Pendens, Plaintiff Castillo recorded a second Notice of Pendency of action on May 12, 2021. Title to the Subject Property is not at issue in this matter. Despite Plaintiff’s Money Judgment entered on January 10, 2022, the Second Lis Pendens was not withdrawn. Intervenors have repeatedly demanded Plaintiff to remove the Second Lis Pendens, but Plaintiff has failed to do so.

Plaintiffs in Intervention argue that this motion must be granted because they must intervene to expunge the lis pendens, pursuant to CCP § 405.30. Additionally, under CCP § 387, Plaintiffs in Intervention are permitted to intervene if either the nonparty “claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest” or the person has “an interest in the matter in litigation.” Here, Plaintiffs argue that it is undisputed that they are the record owners of the Subject Property. (RJN ¶ 3, Ex. 3.)

            Here, Plaintiffs in Intervention has demonstrated a material interest in the action. “The purpose of allowing intervention is to promote fairness by involving all parties potentially affected by a judgment.  Section 387 should be liberally construed in favor of intervention.” (Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499, 1504-1505.) Under the mandatory provision of CCP § 387, Plaintiffs can intervene. “If timely, then the proposed intervenor, to establish mandatory intervention under subdivision (d)(1)(B), must show (1) “ ‘an interest relating to the property or transaction which is the subject of the action’; (2) “he or she ‘is so situated that the disposition of the action may as a practical matter impair or  impede’ ” his or her “ ‘ability to protect that interest’ ”; and (3) he or she is not “ ‘adequately represented by the existing parties’ ” (Crestwood Behavioral Health, Inc. v. Lacy (2021) 70 Cal.App.5th 560, 572–573.) Here, the Court finds as an initial matter that this motion is timely. An amended judgment was entered in January 2022, but did not discover the second recorded Lis Pendens until months later. This current motion was filed in December 2022, therefore, this matter is timely. Next, the three factors as stated in Crestwood have been satisfied. First, Plaintiffs-in-Intervention purchased the Subject Property. (RJN 3.) Second, without the ability to intervene, as this Lis Pendens clouds title to the Subject Property. And third, Plaintiffs in Intervention were not named in the action. Further, even under the permissive subdivision, intervention is appropriate. Under § 397(d)(2), a nonparty may intervene if the person “has an interest in the matter in litigation, or the success of either of the parties, or an interest against both.” Here, Plaintiffs-in-Intervention purchased the Subject Property that has the Second Lis Pendens still attached, and therefore, have an interest in the matter.

            Motion for Leave to Intervene is GRANTED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

Motion for Leave to Intervene is GRANTED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             March 1, 2023             __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court